You are on page 1of 65

Plea to the Jurisdiction September 30, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES TRIAL COURT CAUSE NO. D-1-GV-12-001731 CITY OF EL PASO vs. GREG ABBOTT ) IN THE DISTRICT COURT ) ) TRAVIS COUNTY, TEXAS ) ) 261ST JUDICIAL DISTRICT

_____________________________________________ PLEA TO THE JURISDICTION SEPTEMBER 30, 2013 _____________________________________________

On the 30th day of September, 2013, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Orlinda Naranjo, Judge Presiding, held in Austin, Travis County, Texas. Proceedings reported by computerized stenotype machine.

Plea to the Jurisdiction September 30, 2013

1 2 3 4 5 6 7

APPEARANCES Lowell Denton


State Bar No. 05764700 Scott M. Tschirhart State Bar No. 24013655

Denton, Navarro, Rocha & Bernal, P.C. 2517 N. Main Avenue San Antonio, Texas 78212 Telephone: 210-227-3243 E-mail: lowell.denton@rampage-sa.com COUNSEL FOR PLAINTIFF Bill Aleshire
State Bar No. 24031810

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Riggs Aleshire & Ray 700 Lavaca Street Suite 920 Austin, Texas 78701 Telephone: 512-457-9806 E-mail: aleshire@r-Alaw.com
COUNSEL FOR INTERVENOR Kimberly Fuchs

State Bar No. 24044140 Texas Attorney General's Office PO Box 12548 Austin, Texas 78711-2548 Telephone: 512-475-4195 E-mail: kimberly.fuchs@texasattorneygeneral.gov COUNSEL FOR ATTORNEY GENERAL'S OFFICE

Plea to the Jurisdiction September 30, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Aleshire. A-Y-A-L-A. name? Your Honor.

PROCEEDINGS September 30, 2013 THE COURT: Okay. The Court will Cause

No. D-1-GV-12-001731, the City of El Paso vs. Greg Abbott. Is that correct? MR. DENTON: THE COURT: Correct. All right. Counsel, if you

would announce who you are and who you represent. MR. DENTON: Yes. Lowell Denton from the

City of El Paso appearing with Scott Tschirhart from my office. We are ready to proceed on our plea to the

jurisdiction and then, pending the Court's determination on that motion, potentially on the motion to quash discovery. THE COURT: I'm sorry, your name, sir? I'm Scott Tschirhart,

MR. TSCHIRHART:

THE COURT:

How do you spell your last

MR. TSCHIRHART:

It's spelled

T-S-C-H-I-R-H-A-R-T, Your Honor. THE COURT: Okay. Your Honor, my name is Bill

MR. ALESHIRE:

I represent the intervenor, Stephanie Allala, And we are ready.

Plea to the Jurisdiction September 30, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT:

All right.

Let's see, from

the City, why don't you tell me what the case is about and then we will get into the substance of the case. MR. DENTON: Certainly, Your Honor. This It's

case is about a Texas Public InforMation Act case. about obtaining information, City public information

records from the City of El Paso in connection primarily with the government of the ball park out there, longstanding controversy that was adjudicated on a 1205 Nonvalidation Proceeding in front of Judge Sulak some time ago in this courthouse. The requestor, Stephanie Allala, filed several requests with the City of El Paso, very voluminous requests, for communication among council members, City staff, and outside individuals. When that request was filed, the City responded, in part, and under the statute -- and I will get to the statutory references in a minute -- filed a request to the Attorney General to determine whether or not the information was appropriate to be produced, citing exceptions and so forth. The Attorney General made a determination, and under the statute, the City of El Paso filed suit against the Attorney General to contest the public nature of some of that information.

Plea to the Jurisdiction September 30, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case. the Court.

This plea to the jurisdiction is before And as the Court knows, this Court's

jurisdiction is framed by the pleaded allegations. THE COURT: Before we go into the

substance, I just wanted to get an understanding. MR. DENTON: That's the nature of the

The rest of the nature is the City changed its

position and now agrees with the Attorney General and has done what the Attorney General determined. We

believe the case has been mooted by that development. THE COURT: Oh, okay. And so, in other

words, you've produced what the Attorney General said was public information and that you should produce. MR. DENTON: THE COURT: Yes. Mr. Aleshire? Your Honor, Ms. Allala was She

MR. ALESHIRE:

the -- one of the requesters of the information.

asked for correspondence that had occurred between the City Council members and made it clear in the request that it didn't matter to us whether that correspondence occurred through -- like e-mails -- occurred through the city computer, or whether they corresponded with each other on official business using their personal e-mail accounts. In the request to the Attorney General,

Plea to the Jurisdiction September 30, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that issue came up. in their ruling.

The Attorney General addressed that

Under the Public Information Act, if a governmental body sues the Attorney General, they have to sue them here. But the requester is permitted to intervene. And Ms. Allala intervened with the petition

asking that all of the information that she had requested be turned over. And one of the -- one of the smaller issues that's relevant to the plea to the jurisdiction is, when they did disclose the information, they redacted the personal e-mail address that was used by the public officials in communicating with each other. There is a section in the Public Administration Act that makes e-mail addresses of a member of the public, for purposes of communicating with the governmental body, confidential. We also argue in this case that they should not have redacted that information. So that's a

separate issue as to whether they turned the records over. The issue of fact that is before the Court underlying the plea to the jurisdiction is whether they have actually turned over all of the records that

Plea to the Jurisdiction September 30, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Ms. Allala asked for. That is where the depositions come in. have not had the opportunity to conduct depositions of these custodians. THE COURT: Mr. Aleshire, before we go We

into the underlying argument, let me turn it back over to the City for purposes of their argument on the plea to the jurisdiction, only because I want to get an understanding of what the case is about. MR. ALESHIRE: Our position is that Your

Honor should not decide the plea to the jurisdiction until we have been permitted to do at least the basic depositions to see if there is records still out there. MS. FUCHS: Your Honor, I'm Kimberly Fuchs And I apologize for I was in uncontested

from the Attorney General's Office. walking in a couple minutes late.

and I started talking to Judge Meachum about the new statute dealing with the -- with the courts handling the records, and I lost track of time. close to 9:00 it was. We don't have anything on file. not opposing the plea to the jurisdiction. We are I didn't know how

But -- and

we are not taking a position on the motion for discovery to decide the plea, so I'm just here to represent the Attorney General.

Plea to the Jurisdiction September 30, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there. Court or -Court. time.

THE COURT: MS. FUCHS:

All right. But I don't need any speaking

THE COURT:

All right.

Thank you.

Counsel, I will let you go ahead and do your plea to the jurisdiction. MR. DENTON: Thank you. May it please the

I would ask the Court -THE COURT: Do you have a book for the

MR. DENTON: THE COURT:

I do.

May I approach?

I saw a lot of binders over

MR. DENTON: mostly for reference.

Yes, indeed.

And that's

It will not be the focus of a I will hand the Court a

great deal of my discussion.

copy of some cases here in a moment. As I started to outline for the Court, this plea to the jurisdiction litigation in the context of the Public Information Act is very unique. Under Texas law, the plea -- the Court's jurisdiction is framed by the pleadings. And so the

Court has to look at what's happened here under the Public Information Act. Under 552.321, 324, and 325, there are

Plea to the Jurisdiction September 30, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

lawsuits that are permitted.

City of El Paso has

immunity from litigation over this issue except as that immunity has been waived under the Public Information Act. Those sections of the Act, 552.321, 324 and 325

are the circumstances under which litigation can take place. We filed this lawsuit against the Attorney

General to contest the issue. Now, as the Court knows, I'm sure, what typically happens under the Texas Public Information Act, it doesn't involve any courts. to the City. The City decides what it thinks the law is, produces information. And if it doesn't believe A request is made

that some of that information can be produced, the Legislature has set up a very effective process that's worked hundreds of times, maybe thousands of times a day, with 254 Texas cities over all of the different counties that are involved all over the State of Texas and other state agencies. And those are carried out by

sworn governmental officials. They are not court-supervised. not the subject of discovery. They are

They are the subject of That request goes

individuals complying with the Act.

to the Attorney General that receives the relevant materials and makes a determination pursuant to the

Plea to the Jurisdiction September 30, 2013

10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

public policy that's in the Public Information Act. that happened in this case.

And

The City of El Paso could have chosen to just give the information and there would have been no case or controversy in terms of jurisdiction of Texas courts. The City decided that it disagreed with a part of the Attorney General's determination and filed this lawsuit. As they are entitled to do, the And their pleadings

intervenors intervened in the case. only say two things.

They want us to produce materials

that they originally asked for. Their pleadings do not raise any issue of the City's refusal to produce information, which is the subject of a separate statute for mandamus. a mandamus action. This is not

This is an action to determine which

records are to be produced. If the City had agreed to begin with, that would be the law in that particular dispute. In this case, having conceded judicially in this case, because there is another court that's involved here; that's a euphemistic term, it's a court of public opinion. Democracy in El Paso changed directions during the course of this case. After we were retained

Plea to the Jurisdiction September 30, 2013

11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

and authorized and there was an issue that we were authorized in the past, authorized to file this lawsuit on behalf of the City of El Paso, and to take issue on the legal questions that were involved, the democratic process changed the public policy position of the City of El Paso. And the City Council directed that we throw in the towel, which we have done. So we have

judicially conceded that the Attorney General's determination is correct, and we accept it. So our original lawsuit, normally, would just result in a nonsuit and we would be done but for the intervention. The intervention raises no new issue.

It does not say that we have refused to produce any public records. Now, under the Giggleman case, which I want to hand you a copy of real quick, the case that was decided by Judge Yelenosky here to begin with, went to the Court of Appeals. THE COURT: isn't it? MR. DENTON: book. I don't think it's in the I think it's in your book,

So I am going to hand you, if I may, this one

because it's highlighted. So what I would like to point out -- and I

Plea to the Jurisdiction September 30, 2013

12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

will just summarize and the Court can look at the highlighted sections there -- under these statutes that we are talking about, the City has produced -- and I will get to our plea to the jurisdiction evidence in just a moment -- the records that are in question. THE COURT: facts, is that right? MR. DENTON: No. I'm talking about in the You are talking about the

case that you are looking at here, the El Paso case, the City has produced these records. And I will get to, in

a minute, the affidavit from Joyce Wilson, the City Manager, that's attached to our plea. But I want the Court to understand the context that the City has produced those documents, posted them on its website, and given them to the intervenors. So there may be questions about, we think something wasn't included that was an attachment. There

may be questions about why there is missing page 16 on a particular document. That happens all the time. That's

not an issue for judicial determination. The City of El Paso is now bound to do what the Attorney General determined that they were bound to do. It is that law of the case outcome

that's -- that is in existence today, that moots this

Plea to the Jurisdiction September 30, 2013

13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Court's jurisdiction under Giggleman . What happened in Giggleman was fairly complicated. He was a veterinarian medicine doctor. His He

got accused of violating the Texas statutes. license was at risk.

He was trying to get a copy of the

complaint and all of the exhibits that were attached to it, and that's what the fight was about. Ultimately the Veterinarian Medical Board produced to him all of the exhibits to the original complaint. They did that after a summary judgment

motion was granted in favor of that veterinarian medical doctor by Judge Yelenosky. The Court concluded that, once they produced all the exhibits, the case was moot and the Court lost jurisdiction. are today. In this case, the only question that's before the Court in the pleadings is the law of the case represented by the Attorney General's determination. The City of El Paso fully and completely intends to comply with it. Now, Mr. Aleshire is going to argue that this Court should continue to exercise jurisdiction it doesn't have in order to allow him to go chase down rabbits about whether or not somebody has a document And that's exactly where we

Plea to the Jurisdiction September 30, 2013

14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that is not in the City's possession, that isn't on a City computer, that's not at a City office, that the City can't get. What the Court will see -- and we have in our jurisdictional evidence here, offered the affidavit of Joyce Wilson, who is the City Manager. And her

testimony in that affidavit, for jurisdictional purposes, establishes that the City has obtained, assimilated, put together, and published on its website all of the -- all of the documents that are responsive to the request per the Attorney General's determination. And having done that, we are finished. If issues happen after this Court dismisses this lawsuit that are within the scope of that Attorney General's decision, Mr. Aleshire can pick up the phone or write us a letter, and we will go get it and find it and produce it to him, because that's our legal obligation under the law. case as we speak today. supervision. Under the Public Information Act, discovery running down all of these people that might have had a document is not authorized under the statute. It says nothing about that. Under Mr. Aleshire's version, what could That is the law of the

That doesn't require court

Plea to the Jurisdiction September 30, 2013

15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

happen is, is that somebody could make a request to the City of Austin for something that had do with the fire run, and then go depose all of the people on the fire truck that had a personal computer about what they put on Facebook after they went on an emergency run for the City of Austin. This lawsuit, Judge, is against the City of El Paso. It's not against all those other people,

present or former public officials. It is defined by the Act. jurisdiction is defined by the Act. The Court's

And having released

all the information and accepted the law of the case, the Court has lost jurisdiction. I will wait to talk about the other issues. But I think it's important for the Court to see

the distinction here. Some of these other cases, like the City of Dallas cases that deal with public information that are cited in our pleading, those are cases that deal with whether or not public information, by definition, includes things that are on the private personal computer of other individuals. But the City of Dallas case makes it clear that a case against the city government is limited to things that the city has or has a right of access to.

Plea to the Jurisdiction September 30, 2013

16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

There is no jurisdictional pleading here that says that the city has a right of access to something that it has not provided, and that's a critical fact. THE COURT: make his argument. MR. DENTON: THE COURT: Thank the Court. Counsel? Thank you, Your Honor. And I will let Mr. Aleshire

MR. ALESHIRE:

Well, I agree with most of what Mr. Denton said about the process. If an open records request is

refused and they request an Attorney General's opinion. But he left out an important thing. The requester, under the Public Information Act, has authority under Section 552.321 -and, Your Honor, I've included -- it's stuck in the -in the responses that I have given a copy of the Public Information Act as well as the Local Government Records Act. And under 552.321, a requester can file suit any time if they have been denied records that they asked for. Perhaps what I should do, Your Honor, if you don't mind, let me just walk you through real quick what I have given you.

Plea to the Jurisdiction September 30, 2013

17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT:

Sure. There is a document called

MR. ALESHIRE:

Intervenor Allala's Response and Objections to the Plaintiff El Paso's Plea to the Jurisdiction. And included in there is a supplemental that we just filed last night -- and I provided a copy this morning -- that gives the Court some additional case law on this core issue of whether or not the Court should decide the plea to the jurisdiction before there has been a reasonable opportunity for us to conduct discovery on the core issue of whether they've actually turned the records over. That is a core fact issue. It

is the essence of our pleading. suit.

We intervened and filed

And by the way, Your Honor, I point out to you, we asked for a writ of mandamus, as we are authorized to do, to turn over all the records. So the key fact issue that would make the case moot is whether or not the City has, in fact, turned over all the records that are covered by the Public Information Act. This case kind of becomes a big deal, as I will explain -- as we get through this, because if a city official can correspond offline using their personal e-mail address for official -- for the

Plea to the Jurisdiction September 30, 2013

18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

transaction of official business and are left to decide whether or not to turn that over to the City. And if

they decide not to -- which we have in this case by the way; one of the pieces of evidence we have in here is a statement from former El Paso representative Steve Ortega, indicating he declines to provide the information to the city. So there is evidence right

there that there is some records we've requested that are not -- that has not been turned over. The other thing I provided Your Honor is -THE COURT: So former representative Steve

Ortega states that he has, in fact, conducted official business on his personal phone or e-mail? MR. ALESHIRE: And declines to turn over

those records, the requested records. When we framed the Open Records Request, we were very careful to be indicate that all we were asking for is records that were in the transactional official business. And, if you will, Your Honor, let me show you what I have separated. In here there is a copy of

the -- Section 552.2137 of the Public Information Act. That's the provision regarding whether they can redact e-mail addresses of City Council members, and whether or

Plea to the Jurisdiction September 30, 2013

19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

not those e-mail addresses are e-mails addresses of the members of the public. Most important is that next document, it's 552.002. That's the definition of what public And it is not information that's just It's

information is.

in the possession of the governmental body.

information that the governmental body owns or has a right of access to. Then Section 552.321, which is the suit -that is the section under which we brought this lawsuit, our pleadings, the essence of our pleading, says, intervenor seeks an order of mandamus against the City of El Paso pursuant to 552.321 to disclose all of the information intervenor requested in the request dated September 5th and October 5th, 2012. And then the next section of statutes I have given you is out of what's called the Local Government Records Act. I tell folks in conversation

about open government Texas, this is the neglected area of law that has a big deal to do with open records, because these are the statutes that define what a public record is, and what has to happen to it. Most importantly, Your Honor, I would point out that in Section 201.009, it says that local government records are subject to the TPIA. That's a

Plea to the Jurisdiction September 30, 2013

20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

real simple statement.

But our argument, Your Honor, is

that when you are looking at the reach of the Public Information Act, if a local government record has been created or received in the transaction of official business by a city official or employee, it's subject to the Act. And the other -- these other provisions -and I have put them in the brief, and I will refer to them as we get into that argument. records are owned by the government. government property. Local government They are

The Local Government Records Act

even says that the individual employee who creates the record has no ownership interest in it. So, one of the kind of hidden issues that Your Honor would need to decide is the reach of the Public Information Act, and whether it reaches anything that would be a local government record. Our contention is that, fundamentally, we are entitled to do discovery to determine whether there are local government records that are still out there in the possession of -- and by the way, Your Honor, public officials are required by the Local Government Records Act as well, to turn over their records to their successor. don't. In fact, it's a class A misdemeanor if they

Plea to the Jurisdiction September 30, 2013

21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

So if even former officials have a statutory obligation to turn those records over that are owned by the city, and the city has an obligation, under the Public Information Act, for both current officials and former officials -- anyone who has a local government record in their possession can be compelled to give that to the government so the government can give it to us. The other document I gave you is our response to their motion to quash. They initially filed

those objections based on time and place. I made it real clear, including to Scott this morning, that we are willing to work with them on when the depositions would occur. After Mr. Ortega submitted his statement to the City that he wasn't going to turn those records over, we issued a notice of intent to subpoena him for deposition to find out what records he's got. set that deposition for December 4th. I haven't mentioned this, Your Honor, but the circumstances we were operating in, and the way we've got here today, Ms. Fuchs is leaving on leave from the Attorney General's office this Friday the 4th, and won't return until December. She wants to participate or be present for And we

Plea to the Jurisdiction September 30, 2013

22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the depositions, so I was doing everything I could to try to schedule the depositions before she left. The City Manager and former Council Rep Niland and Council Member Byrd, we set those depositions for Wednesday morning, Wednesday afternoon, and Thursday morning of this week. And we did that 30 days ago. them with all the notices. with all the notices. But we are willing to postpone those if Your Honor decides -- so Ms. Fuchs can participate. got a feeling this is going to go up, Your Honor, one way or the other. If you grant the plea to the jurisdiction without affording us an opportunity to conduct discovery, we think that's error that actually makes it almost impossible for us to ever prove whether or not they turned over the records or not, because we were never allowed to do the discovery. And I suspect that if Your Honor does what we are asking, which is, just don't act on the plea to the jurisdiction but permit us to do the targeted discovery to determine whether or not they had, in fact, turned over all the records -- even the City of El Paso -- we have evidence that we included in here in I We served

We served the individuals

Plea to the Jurisdiction September 30, 2013

23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

affidavit, when they sent us the e-mails, they didn't include the attachments. So they withheld -- right there, the City withheld information that was covered by the request and just -- and it wasn't contested with the Attorney General, but that's irrelevant. If the Attorney General had never become involved in this case, we are still entitled to make a request. court. It's a venue difference. is. That's all it If it's turned down, we are entitled to go to

If the City says, we are not giving you any

information, we are not asking for an AG opinion, I ought to have the suit in El Paso, because venue would be there, just the suit, between the requester and the City. But once the City asks for the AG ruling and doesn't want to comply, they have to sue the Attorney General here in Travis County. intervened here. 552.321. And we

So our lawsuit is the same under

We didn't have to wait for an AG opinion in

order to sue. Now, there hadn't been any mention of the standard that the City must meet in order to get their plea to the jurisdiction. And it is similar to a

Plea to the Jurisdiction September 30, 2013

24

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

summary judgment. the fact.

They must prove as a matter of law

The fact is whether or not the City has

turned over all the records. Since the -- that is the core part -- most of the time, Your Honor, as you know, you don't -- you don't have to take discovery in every plea to the jurisdiction. But if there is an underlying fact question, you should take evidence. But then you've got

the issue of whether or not the parties have both been provided an opportunity to do discovery to submit the evidence that would go to this fact. The cases that I cite for you are cases that say that -- from the Supreme Court, that the discovery goes to the core issue of the pleading. We

said, Give us these records; you haven't given them to us; we have gone to the court; we want you to give us those records. That's the core part of our pleading, we

must be allowed to do discovery. There is a couple of cases that, I think are particularly helpful. In the supplement that I gave

you this morning, Your Honor, at paragraph 5 on page 2, it's our supplemental response. There is a case that -- the Diocese Galveston Houston vs. Stone . This is a case where a

Plea to the Jurisdiction September 30, 2013

25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

teacher -THE COURT: Do you have a copy of it? Yes, I do, Your Honor.

MR. ALESHIRE:

Mr. May was a teacher at the Catholic school, and he got fired. them. And he filed suit against

Because of the issue of First Amendment of

Separation of church and state, the Diocese filed a plea to the jurisdiction and said, Hey, he was fired for religious reasons. And, Your Honor, if you would look around 175 to 176 in the -- I'm sorry, I didn't get time to mark it this morning. THE COURT: this? Let's see. What page is it on

On top, what page number is that? MR. ALESHIRE: If you look on page 9,

Headnote 17. You will see that what May said is, Wait a minute, I wasn't fired for religious reasons. And the

school went up after the -- what the Court did in that case -- in fact, Your Honor, if I could go back a bit. There is an interesting discussion. If you will look on

page 7 -- can I approach, Your Honor, and show you where I am? THE COURT: Yes. On page 7, this paragraph

MR. ALESHIRE:

Plea to the Jurisdiction September 30, 2013

26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

right here.

Notice what it says down in that -- "In

discussing the plea to the jurisdiction with the lawyers, trial Judge Kathleen Stone opinioned that the constitutional issue of separation of church and state would more properly presented in a motion for summary judgment, following limited discovery to respond to the jurisdictional attack. "May filed a motion to take limited discovery in a motion to compel. Judge Stone entered an

order expressly withholding a ruling on the plea to the jurisdiction allowing limited discovery and providing for post discovery presentation of the jurisdictional issue in the motion for summary judgment as appropriate." THE COURT: Counsel, I had a case -- I

think it's still up on the Court of Appeals, though, but it was related to the -- you know, the Court -- related to the state and its restrictions, what TexDOT did was place restrictions on allowing H-2 workers to get driver's licenses. Department. But, initially, at the plea to the jurisdiction, I did not grant or deny. I allowed And I ruled against the State

discovery on that very issue -- was whether they were, in fact, not allowing individuals who came into their

Plea to the Jurisdiction September 30, 2013

27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

facilities to get driver's licenses as a basis -because they were H-2 workers, and they were not here more than a year, which is longer than -- they had set a restriction that was broader than the federal court, so I said they couldn't do that. And so ultimately that's what I ruled, but I allowed discovery on that issue, which is what the key issue is. So I would agree with you, under certain

circumstances, the Court should deny a plea to the jurisdiction -- or not grant or deny, but basically postpone it, allowing some discovery. And then

ultimately I denied the jurisdiction, and that's what went up. MR. ALESHIRE: happened. And on page 9 -THE COURT: So I'm familiar with this That's exactly what

concept of why it goes to the core issue that maybe we should allow some discovery. MR. ALESHIRE: And the Court of Appeals

held here that several -- especially the nature of the discussion of the case before us, whether or not -- and this is -- that was at 176 and 177. THE COURT: 17? MR. ALESHIRE: That's Headnote -- it is 20 Is that back to the Headnote

Plea to the Jurisdiction September 30, 2013

28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

and 21 on page 11. It says, "Similarly, the speculative nature of the discussion of the case before us, which is whether or not Mr. May had been fired for religious purposes or secular purposes, which would invoke the First Amendment issue or not. Demonstrates why it was

premature for Judge Stone to foreclose this case on judicial grounds." And they ended up holding at 177 further down that: "We believe that the trial court did not

abuse its discretion in allowing limited discovery to clarify the context of the Diocese jurisdictional plea to determine whether the decision to fire May was religious-based. Further, because Judge Stone has not

yet ruled on the plea to the jurisdiction because her order contemplates an adequate remedy at law, mandamus will not lie at this stage of the proceeding." other cases along the same line. The last thing I would say, Your Honor, I think that, under rules of discovery, considering we haven't been able to do discovery on this core issue of whether they, in fact, withheld records that we are entitled to, but they have the burden to prove as a matter of law that they have -- that they had in fact -even the City has, even if you accept their idea, that There is

Plea to the Jurisdiction September 30, 2013

29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

if current -- we have evidence in our -- in here, for example, that the City Manager has not turned over some correspondence that she conducted on her personal computer. THE COURT: evidence is? MR. ALESHIRE: Yes, Your Honor. Could you identify where that

We start on page 10 of our response to the plea, paragraph 19. "Intervenor." I had numbered our exhibits "I" for

And here is -- here is our evidence to

respond to them that -- they have provided at Exhibit I-8, the affidavit of Joyce Wilson. Manager. We ask the Court to strike that affidavit as being conclusory and full of unsubstantiated factual and legal conclusions. There is nothing in this She is the City

affidavit, even though Ms. Wilson claims that the City gathered all the information in their control, their lawyer is arguing that if an individual decides to hold back a local government record and keep it in their personal e-mail account, that it's not within the City's control. That's the issue under the definition of

public information. If it's a local government record, they do own it, under the Local Government Act. And if they own

Plea to the Jurisdiction September 30, 2013

30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

it, they have a right of access to it, and they should be compelled to go get it from the officials, if it's local government record. Then the other thing, Ms. Allala says, it says: "The City of El Paso conducted a diligent

search" -- this is down toward the bottom of her deposition -- "for the information and does not have any additional responsive documents." But the affidavit does not explain any factual basis on how she concluded -- conclusionary, concluded that they performed a diligent search. did they do? The affidavit gives this Court no What

information to judge whether they even did a diligent search within the City to locate those. We believe the Wilson affidavit, which is the only evidence they've submitted in support of the plea, is deficient. But we will go another step. There is

evidence from our side that they actually didn't turn over all the information. The first item on page 11, paragraph 20, they didn't give us any of the attachments that were attached to those e-mails. We got the e-mails. We have And at

done through them and done a diligent search.

Exhibit I-9, I provide an affidavit from my client who

Plea to the Jurisdiction September 30, 2013

31

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

actually has the paper copy of the records that the City gave. And she has gone through all of them and searched

for the attachments that are shown on the e-mails, and then provided some examples of e-mails that showed they have attachments. But the attachments were not included

with what the City provided. Secondly, we told you about Steve Ortega, Exhibit I-6. It's his statement where he says that what

the City did in August was to go out and send letters to all of these City Council members, former City Council members, and City Manager, and asked them to voluntarily turn over everything to the City. until September 16th to do so. THE COURT: I am looking at that request. It doesn't even And, he gave them

And that was the request that was sent.

try to limit the e-mail request that relate to the public official business. I mean, I am just looking at that exhibit. So that individual might say, Well, I am not going to give you my private e-mails that I am sending to my mother. But it doesn't at any time indicate -- I am

only looking for, you know, your personal e-mails. MR. ALESHIRE: I didn't include it, Your

Honor, but it's included in their -- as an attachment in their motion.

Plea to the Jurisdiction September 30, 2013

32

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the City.

The letter from the City repeated the request, the language from the request. And our request

was for e-mails, including e-mails using personal e-mails accounts, letters, memorandum, notes, and other forms of written communication regarding any matter of public business of the City of El Paso. So the request that Mr. Ortega received -and there are several requests. Honor, I hadn't mentioned this. And by the way, Your We are not the only There were, I

requester who is affected by this case.

think, three or four other -- that is the City -- they had gone to the Attorney General and asked to withhold records and then incorporated those requests in this one lawsuit. Those others have not chosen to intervene, at

least not at this point. There is also -- if you will look at Exhibit I-11, the last exhibit, this is -- there was a request from -- while the request was for a copy of the e-mails the City Manager received from certain citizens about the ballpark issue in the petition for it. I-11 is an e-mail that was disclosed to But if you read it, it says -- if it matters,

Ms. Wilson writes that these were sent to me by several citizens who attended some of the forums last week. she's cut and pasted part of the e-mail that she And

Plea to the Jurisdiction September 30, 2013

33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

received about the decision process and the petitions and so forth. Well, the request was for the originals of those requests and any of the e-mails the City Manager was conducting offline. the City site. e-mail account. They sent them to her, not on

They sent them to her on her personal And this hasn't been turned over.

So here is one that even the City Manager has apparently not turned over to the City and not provided. I think that's enough, Your Honor, to at least raise a fact issue as to whether or not the City has proven as a matter of law that all the records have been turned over. But even if we didn't go there, we wouldn't even have to consider that, considering that all the depositions that we are asking to do would be targeted, and we are willing to accept the limitation of those depositions and the questions that I would ask, they are scheduled for a short period of time each, would be directed to determine what records they had, where they are, whether they have been turned over. And we are willing to work on the scheduling. We had proposed that they occur at my

client's law office in El Paso, which is one block from

Plea to the Jurisdiction September 30, 2013

34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the city hall.

They objected to that as not being a We will work with them on that.

neutral location.

They objected to the date of this week on the depositions of Wednesday and Thursday. But the City

Council meets on Tuesdays, and they are closed -- the city government is closed on Fridays. So I had kind of

a small window to meet Ms. Fuchs' schedule as well. THE COURT: due? Ms. Fuchs, so when are you

I'll ask that question. MS. FUCHS: THE COURT: I'm due on Sunday, Your Honor. On Sunday. All right. So you

might not even make it until Thursday? MS. FUCHS: THE COURT: MR. DENTON: THE COURT: her when she's due? MR. DENTON: THE COURT: respond. MR. DENTON: THE COURT: I am just waiting my time. Okay. And I know you are not No. Okay. I am going to let you That's true, Your Honor. Okay. May I, Your Honor? Yes. Are you going to add to

taking a position; is that correct? MS. FUCHS: That's correct, Your Honor. Your Honor, just the best

MR. ALESHIRE:

Plea to the Jurisdiction September 30, 2013

35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

review that I did in relationship with the local government records and how that ties in is in the response to the motion to quash. And it's not real long, but it cites each of the provisions of the local government record in how that Act ends up building up to a level of defining what the records are that may still be out there, and why the City has an obligation as the owner of those records to go get them and give them to us. THE COURT: Giggleman case? MR. ALESHIRE: Your Honor, first of all, And it isn't Did you want to respond to the

that was an issue about attorney's fees.

as clearly an issue of whether or not a fact condition existed. I also don't know whether or not they were

able, in that case, to have conducted discovery. The difference here is we haven't been allowed to depose any of these witnesses to find out whether the underlying fact question -- I saw this case. I didn't think it was relevant to this, the issue of whether or not they prevailed on attorney's fees. And it says that their claim for his relief was rendered moot before final judgment when the board had eventually produced the disputed exhibits to them, obviating any judicial controversy regarding his

Plea to the Jurisdiction September 30, 2013

36

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

entitlement to the writ.

But we don't have any evidence

that proves as a matter of law nor have we had an opportunity to determine whether the City has turned those over. The issue of whether or not the board had turned all the disputed records over to Giggleman wasn't disputed in this case. It's disputed in this case as to

whether the City has turned over all the records. THE COURT: correct? MR. DENTON: THE COURT: Yes, Your Honor. Mr. Denton, it seems to me -Okay. And it's Mr. Denton,

and I wanted to let you both know that I had that case with the Department. Actually, like I said, I think it's still before the Court of Appeals. the Court of Appeals. of years ago. But it seems to me that if the Court issue here, and some of the evidence produced by Mr. Aleshire is that documents haven't been -- haven't been produced completely and, you know, even without looking at the affidavit and making rulings on their objections to your City Manager's or mayor's -MR. DENTON: Yes, ma'am. I know it's still before

But I made that ruling a couple

Plea to the Jurisdiction September 30, 2013

37

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 directly then.

THE COURT:

-- affidavit, that the You've got one

attachments weren't produced.

representative -- is the representative -- is that the same as the City Council member here and you call them representative there? -- that a City Council member is

saying, I am refusing to turn over any documents that I may have on my e-mail account, my personal e-mail account that relates to conducting official business. You have those right there saying not everything has been turned over. How can the Court then

grant the plea to the jurisdiction on that issue, because your position is that issue is moot, we have turned over everything, so there is nothing before this Court to decide? MR. DENTON: Let me answer the Court real

I think that Giggleman , or Giggleman, or however you say it, clearly indicates that when there has been -- Giggleman . THE COURT: MR. DENTON: Giggleman. Giggleman. On the issue that

was the case of controversy before the Court, under the limited jurisdiction of the Texas Public Information Act, has been resolved. And in this case, it has been

resolved by the City's change of position in judicial

Plea to the Jurisdiction September 30, 2013

38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

admission. Ms. Allala's affidavit on this business about the attachment that she's diligently searched, she's determined that many e-mails attachments were not included. Some examples are provided with Exhibit A.

And she attaches a number of those. Joyce Wilson's affidavit says, The City has produced them all and posted them all on its website. Now, in circumspect here, Judge, I'm limiting my comments to what is on the record about the jurisdictional evidence. The website has the attachments on it. don't believe that the fact that we may still -- we still have a legal duty to produce everything in accordance with the AG's determination. case for controversy. I don't believe that jurisdiction means that if they can find a page 18 somewhere that was missed in the copying process inadvertently, that the Court has jurisdiction over page 18. effectively what they are arguing. THE COURT: If I put it on the website, And that's That was the We

but I have not produced it to the intervenor, then that should take care of that problem.

Plea to the Jurisdiction September 30, 2013

39

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. DENTON:

That is what I am arguing.

Now, I agree with the principle that if the Court cannot determine the core facts that give rise to jurisdiction in Giggleman , there is no controversy. It just says in It

there -- it doesn't say anything about discovery.

just says that the board turned over all the exhibits. That's what the City chose to do. That's what we have

confessed before this Court by judicial admissions, that we have changed our mind. THE COURT: I need to address the

objection to that affidavit on that point, because there is nothing in there that says, this is what the City did -- you know, it is a conclusion, just as Mr. Aleshire has indicated. MR. DENTON: concept about that. MR. ALESHIRE: I'm sorry, but I probably And I agree with the Court's

should object to the introduction of issues about the website. I'm not aware of what's on the website at all.

And I don't know if it's been proven that the attachments are actually on the website and when they got on there. THE COURT: And I am -And there is no mention of

MR. ALESHIRE: it in the affidavit.

Plea to the Jurisdiction September 30, 2013

40

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. first. for.

THE COURT:

And that's what I was looking

It says, The public availability of the

information disclosed on the city of El Paso website, and it provided them with link address. MR. DENTON: The first issue, as I see it

for the Court, is whether or not there is some question about whether or not we had complied with the Attorney General's decision. THE COURT: That's what I presented to you It seems from

That's the question.

Mr. Aleshire's perspective, there seems to be -- there is to be -- there seems to be some evidence that shows that City hasn't. MR. DENTON: And I have a proposed answer

for that that's short of taking a bunch of lawyers to El Paso and deposing a bunch of people, which I think it's totally unnecessary. to quash. Secondarily, I think the argument goes way beyond that when you talk about trying to discover information from a person that's no longer an employee or an officer of the City of El Paso and not a party in this case. The Court has no jurisdiction over that And I think it's important -- I will hand the But that's really under the motion

Plea to the Jurisdiction September 30, 2013

41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Court, if I may approach, Judge, a copy of the Dallas Morning News case. it. Counsel has it and is familiar with

I think it is on page 4 there in that opinion. There is a couple of things that I just

want to point out to the Court.

There are two things In a

here that are fatal and that continue to be fatal.

case against the City of El Paso, which is what we are here on today, that they can get records by discovery, subpoenaes, and depositions of a nonparty, former city employee. There were two things in the Dallas Morning News case. They argued that, since the City of

El Paso did not send to the Attorney General for review materials that it couldn't get from its public officials on their private devices, that they waived any exception under the Act. The court disposes of that and says, the It argues that

city doesn't claim an exception.

personal e-mails accounts are not public information under the Act. And the court agrees with that. And it

concludes that a governmental body does not include May or Miller. THE COURT: reading? MR. DENTON: page 4, Judge. I believe that's still on Okay. So where are you

Plea to the Jurisdiction September 30, 2013

42

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with?

THE COURT: MR. DENTON: summary judgment motion. THE COURT:

Oh, okay. It's right before the City's

What does the paragraph begin

MR. DENTON: It's on page 6. THE COURT: MR. DENTON: Court has the same.

I'm sorry, I had miscited.

Okay. And I want to make sure the I want to

I have the Westlaw copy.

make sure it's the same as the one I handed you, Your Honor. It's on page 7, right at the bottom there. THE COURT: MR. DENTON: Okay. "A governmental body does not

include Mayor Miller" -- who was still the mayor -- "or city employees. information. Personal e-mail accounts are not public

It goes beyond the expressed language of

the statute requiring request for the Attorney General's decision. And it says, accordingly, the News had the

burden to show the city had refused to produce existing e-mails, collected, assembled, or maintained in connection with the transaction of official city business, which e-mails are owned by the city, or which it has a duty to produce or right of access." THE COURT: I am trying to find where you

Plea to the Jurisdiction September 30, 2013

43

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

are reading. MR. DENTON: the City's -THE COURT: Do you have a headnote? Can Okay. That's right before

you cite the Court with a headnote? MR. DENTON: It's right before where it

says, the City's summary judgment motion. THE COURT: I've got it. MR. DENTON: So if I may, now, I had not Okay. Right before. Okay.

really addressed the motion to quash question because we believe that under -THE COURT: there yet. MR. DENTON: All right. So, to recap, the Okay. Hold on. We are not

City believes there is no jurisdiction over people that are not City employees that don't have access that is equal to the City of El Paso's access, because that's who I represent, and that's the party to this case, and that's the scope of the limited waiver under the TPIA. Secondarily, the City doesn't have -- the issue that was before this Court as is the case for controversy, is the Attorney General's determination that is the scope of our duty. We don't think that discovery is

Plea to the Jurisdiction September 30, 2013

44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

appropriate, necessary, or indicated.

And I am not

arguing now that the Court couldn't order that as a part of making an ultimate determination on the plea to the jurisdiction. But I am telling the Court that if the Court wants to take this case under advisement until we satisfy them that we've given them all the attachments that are within the scope of the Attorney General's determination, that's fine with us. to hide the ball. We are not trying

We are trying to hand them the ball.

And I don't want to have a silly controversy over whether or not we have handed them the ball or not because that's what we decided to do. Joyce Wilson's affidavit says that she did, and she believes that she did it, and if somehow there is inadvertence that it didn't happen, we are prepared to fix it. That doesn't take depositions. THE COURT: I started reading the case What

that you gave me, and it seems to say, okay, there is not evidence to show what is, in fact, accessible to the City as it relates to personal e-mail accounts, because, in this case, it said we cannot grant summary judgment because the evidence is conflicting. You know, even the evidence provided by the City showed that they did have access to -- because

Plea to the Jurisdiction September 30, 2013

45

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

they produced some personal e-mails between the mayor and the City Manager or whoever, some other city employee. MR. DENTON: THE COURT: access to them. to access. So, you know, we have these discovery disputes all the time. Well, Judge, it's the docket. It As had we -Hold on. So clearly, they had

So you cannot -- you know, it's a right

Yeah, you have a right to access that information. doesn't mean you have it. get it. And so that's what the case is saying here. That's why the summary judgment was -- it was

It means you have a right to

just -- it had -- you know, again, it says, because a fact issue exists, the trial judge did not err in granting summary judgment. So it went to the whole

analysis of the right to access. Anyways, Mr. Aleshire, anything to add on this point? MR. ALESHIRE: And the Dallas Morning News

case, what it points out is, it was an issue brought up on summary judgment when the issue was whether there was sufficient summary judgment evidence to do it. What was missing from that case, what was

Plea to the Jurisdiction September 30, 2013

46

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

not pled and was not argued is the role of the local Government Records Act. There was no argument presented

to the Court in that case as we have in this case, that you must look to whether or not it's a public record if the City doesn't -- for records the City doesn't actually have in its hands. Because if it's a local

government record, they do own it, they have right of access to it, and it is within the scope of the Public Information Act. mandamus. One of the things that Mr. Denton has done this morning is to argue to the Court that the information that is at issue as to whether or not they turned it over was the information they chose to withhold when they asked for an Attorney General opinion. And they want to limit the Court's attention And we are entitled to a writ of

to just that set of information. What they have left out is that the City had withheld information within the scope of Ms. Allala's open records request and didn't ask for an Attorney General's opinion on it. We believe that that's our contention. That's why we filed a lawsuit, not just over what they withheld from the A.G, but we broadly pled, under 552.321, that we wanted a writ of mandamus for them to

Plea to the Jurisdiction September 30, 2013

47

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

turn over all the information we asked for. information they withheld from the City.

Not all the

And so we

don't believe that they have turned that over. And while it is absolutely true that if we submitted a request for a fire run in San Antonio for records about a fire run in San Antonio, we don't invoke any right of discovery just filing an open records request. But if the City either doesn't turn over the records, we have a reasonable belief they didn't, we can file suit under 552.321 and have the same discovery rights any litigant would have. Now, the last thing about the former officials, I had cited in our response to the motion to quash the portions of the Local Government Code that define who a "custodian" is of the local government records. The "local government records" definition is very broad. It says, anything, basically, any kind

of record, that is created or received by the City official or employee in the transaction of official business. It is a very broad thing. And then it defines "custodians" to be each of those council representatives was a custodian of the records in their office. The City Manager is the

Plea to the Jurisdiction September 30, 2013

48

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

custodian of the records in their office. They have legal obligations under the Local Government Records Act to turn those over to the City. And if that doesn't work, then we are denied our

rights under Public Information Act. So that's how -- if somebody is in office, creates local government records, takes them with them when they leave, despite the specific responsibility under the Code as the custodian of those records to turn them over to their successor in office, then -- if that's going to be the way the Public Information Act is written, that you can't touch them, you can't even ask them questions about what they've got. We've got the

Public Information Act that says anybody who wants to could just go offline, keep it offline, never even be questioned about what records they actually have. are official government records. MR. DENTON: I would be remised, Judge, in They

not making it clear to the Court that we think Mr. Aleshire's argument, under the Records Retention Act, has nothing to do with this case. Nothing in that statute gives any right of private or similar enforcement. Nothing in that statute

is any waiver of sovereign immunity of any state government, any agency, any local government.

Plea to the Jurisdiction September 30, 2013

49

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

He is attempting to import into a totally different comprehensive local government management responsibility that has no waiver of sovereign immunity, the right to go in there through the back door of the TPIA and enforce all of those standards for records retention and records management. There is no cause of action for that. And

I want the Court to understand that we think that that does not create jurisdiction at all. THE COURT: All right. For our purposes

here, what I would like to do is, let me just go ahead and rule on what I am going to do with the plea to the jurisdiction. First of all, I'll grant -- I'll sustain the objection to that portion of the affidavit of Joyce Wilson and that it's conclusory. The Court finds that it is conclusory. And that is the last sentence on paragraph 1, 2, 3, 4. It says, the City of El Paso has conducted a diligent search for information but does not have any additional responsive documents which have not been published or disclosed without stating the basis, the factual basis for that statement. The Court is going to not rule on the plea to the jurisdiction. I am not going to grant it or deny

Plea to the Jurisdiction September 30, 2013

50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

it.

I'm holding the ruling on the plea to the

jurisdiction to allow some limited discovery, and then provide, perhaps, proposed discovery presentation of the jurisdictional issue. So let's -- so then, now let's go to the motion to quash. MR. DENTON: THE COURT: Counsel? MR. DENTON: It is in my notebook, and I'm If I may? And is that in here as well,

assuming it's in his notebook. MR. ALESHIRE: THE COURT: MR. DENTON: about this, Judge. THE COURT: Counsel, let's just take a It is.

Okay. And I will be very brief

two-minute break, five-minute break, and then we'll come back. (Break taken.) THE COURT: Counsel. All right. to quash. Let's go right to the motion All right. You may be seated,

Have you been able to reach any type of

agreement on this? MR. DENTON: Counsel has agreed that we

Plea to the Jurisdiction September 30, 2013

51

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

can postpone depositions in this case to the extent that the Court chooses to permit them under the December timeframe. courtesy. And we would appreciate the professional And I am sure co-counsel especially

appreciates the courtesy. I will make my comments brief on the motion to quash that's before the Court. In the context

of the Court's intention at this point, we would initially request that the Court limit discovery to Joyce Wilson. If the Court is going to allow discovery to proceed as to other City officials, then we will certainly comply with that request. We would strongly urge the Court not to permit discovery and to quash the discovery at least for the time being, if not permanently, against individuals that are no longer public officials of the City of El Paso that we don't represent as their counsel, because we think that they have legitimate privacy interest as well as interest under the Texas Public Information Act. To the extent that the Court refuses that request, the quash of the depositions of nonofficials or nonemployees, we would ask the Court, as a condition of that deposition, to limit any production of documents pursuant to subpoena from their private devices, that

Plea to the Jurisdiction September 30, 2013

52

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

they had not otherwise voluntarily produced or don't, at this point, voluntarily produced, to be produced solely in-camera's for the Court's jurisdiction of any privacy interest that they may have. If somebody is writing their grandmother or their daughter away in college, you know, about what happened at the City of El Paso on the ballpark issue, I don't think that's a public e-mail under the TPIA. But

those witnesses should have the ability to have you rule on that question instead of just opening the door and letting Mr. Aleshire ask about and compel the production of everything from their personal computer. THE COURT: That relates to the ballpark.

And you're saying, if it was just an e-mail to grandma saying, the issue, the election, or the issue was resolved this way? MR. DENTON: THE COURT: still private? MR. DENTON: But in any event, my primary Yes, ma'am. That you would say that that's

objective there, the people that are City employees or officials will be attended on behalf of their depositions by counsel provided by the City. Those other individuals are no longer City employees. And since these proceedings are to take

Plea to the Jurisdiction September 30, 2013

53

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

their depositions as witnesses, we would request that the Court consider that. Mr. Allala's request. Although I don't

want to misrepresent this, these are things that he is asking for by way of example. And he does not put them

in his motion as a proposed limit on what the deposition should cover. But I think that the Court should limit the depositions to the proper scope that the jurisdictional issue is raised. What steps Joyce Wilson

took to preserve to lead -- to preserve and disclose the requested information, and what became of any materials that have not been produced? And we think that should be the scope as to all of them. My concern, of course, is that under

the current rules, we have a keep-your-mouth-shut deposition system, not like in the old days when I grew up. So that he asked the question. Unless it's

privileged, I can't object. So we don't want a fishing expedition or a philosophical discussion or debate or a bunch of interrogation that's for, you know, future communication to the press about what people's, you know, public service is, or whether or not they should be subject to public scorn for choices or decisions that they have

Plea to the Jurisdiction September 30, 2013

54

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

made, because that's not what this is about.

It should

be limited to the legitimate issues that the Court needs evidence on. THE COURT: Okay. Your Honor, if I could

MR. ALESHIRE:

direct your attention to our response to their first amended motion to quash. I want to first clear up what the subpoena asked for. THE COURT: Go ahead. Exhibit I-15 is a copy of

MR. ALESHIRE: the subpoena. deposition.

We are asking them to sit for an oral And I will say to this Court that the scope

of that deposition, if it needs to be included in the order, I will do so. But I will represent right here to

this Court that my -- that I will limit the questions in the deposition to discovery and what records they created or received, and where those records are, whether they have been turned over. But as far as the duces tecum, as they used to call it, if you look at Exhibit 15, I-15, you will see what it asks -- what we asked them to produce. We are not asking them to produce their e-mails accounts. We are asking them to go through and

select, just like you might do in any discovery, go

Plea to the Jurisdiction September 30, 2013

55

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

through your records and bring us these. And what this number 1 is and goes on to number 2 on the second page is, word-for-word, what we asked for in the open records request. That is repeating the open records request as a duces tecum, and just asking, if they still have those records, we are asking them to bring them to the deposition. We are not going beyond that. THE COURT: noticing it's very broad. But, Counsel, but I'm It's not limited to the

business in the City of El Paso and limited to a certain area of business. I am looking at I-15. There were two requests.

MR. ALESHIRE:

The first request was for all communication on any matter of public business of the City of El Paso that occurred between the Council members themselves and/or the City Manager. That was the first request.

The second request concerned the ballpark and any communication they've had with them. And we

would ask for all e-mails between the City Council members from January 1st, 2012. Without regard to a

subject matter, our request was, if you've talked to each other about City business by e-mail since January 1st up to September 5th, or actually October 5th, 2012, we would like to have those e-mails.

Plea to the Jurisdiction September 30, 2013

56

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about that.

They have produced a bunch of them, thousands of them. There was a lot of discussion going

on outside the City's computer system on their personal e-mail accounts, but they withheld some. And so that's what the first point is, that we are only asking for what was within the scope of the original open records request. And it was limited

to correspondence regarding any matter of public business of the City of El Paso. THE COURT: And I just -- I guess my whole

point about my comment was, it says, public business. And I realize that that would -- you know, I'm just saying it's about a certain matter. limit it to a certain matter. MR. ALESHIRE: No. The lawsuit is about And I say, why don't we

that as well -- the lawsuit is about the request.

the request was for all the e-mails between the Council members and/or the City Manager, just that group, about any topic of that City business. request. That was the first

That's what this lawsuit is about. THE COURT: Okay. MR. ALESHIRE: THE COURT: That's right. I understood it to be And then the second one was

Okay.

only about the ballpark.

Plea to the Jurisdiction September 30, 2013

57

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. ALESHIRE:

No, Your Honor.

We have

repeated here -- and I have a copy of the requests themselves. It says 1 and 2. On the other notebook

that I gave you, it's the actual request so you can see we have done it. Okay. Now, Representative Niland,

N-I-L-A-N-D, and the City Manager, Ms. Wilson, are current city officials. We had issued just a regular notice of deposition with the request for production to them. But

just for belts and suspenders, we then turned around and issued a notice and then subsequently a subpoena to them to appear for the deposition. Former Representative Byrd submitted an unsworn statement that she had some additional records she was turning over this last week or so. turned some additional records over. But she and representative -- former Representative Ortega, I would question them as witnesses. Whether the City represents them or not, I can tell you from experience, Your Honor, sometimes, especially in a deposition setting, the government lawyers were still representing former officials as it concerns the business they had when they were in office, And she

Plea to the Jurisdiction September 30, 2013

58

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

which is exactly what this is. I want to make clear that Representative Byrd and Representative Ortega were in office and are part of the scope of the open records request that we made. They produced -- they created and received

records at that time. THE COURT: In other words, they were in

office in January of 2012 to October 5th, 2012? MR. ALESHIRE: Yes, Your Honor.

And those, Representative Byrd and Representative Ortega, were two of the biggest proponents of the stadium and very much involved in the proposal to get that done. So they are being questioned like you would -- if you step back from this, they are witnesses. They may have records that would be relevant to why local government records were created or what records existed at some point. They can even testify that they

turned all the records over. So we think it's -- we think we should be allowed -- they are relevant witnesses because they created or received records within the scope of those open records requests. They have turned some -- all And

except for Mr. Ortega -- turned some records over. we want to see if there is anything else out there.

Plea to the Jurisdiction September 30, 2013

59

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Your Honor, if we get to the conclusion that after we conduct our discovery and are satisfied that, in fact, they have turned everything over that is available under the Public Information Act, we will nonsuit. THE COURT: brief response? MR. DENTON: further, Judge. Just to clarify what I am asking the Court to do for the no longer City officials is merely to give them the prerogative to assert a privacy interest as to what materials that they would produce in-camera so that the Court can decide on it. necessary. But because this is their private devices, Counsel is exactly right. If we were taking depositions That may not even be I don't think anything All right. Counselor, any

about stuff that's on the City computer, we wouldn't have a problem, and we would attend on their behalf. But they may have privacy interest about their own materials that they want to assert. And I am merely asking, even though they are not my clients, for the Court to accommodate that, because all the Court would have to do is then decide whether they were right or wrong and those materials

Plea to the Jurisdiction September 30, 2013

60

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

were public or not. THE COURT: Okay. Your Honor, we can agree to

MR. ALESHIRE: that.

If we are in a deposition and they assert --

yeah, I've got some records, but I don't want to turn them over, I've got a privacy interest, I will ask the court reporter to certify the question, and we will reserve that for later, and we can come back and see whether not that should be -THE COURT: Then there is agreement,

depending on what that was. MR. DENTON: That's what I was asking for.

We still assert that they are beyond the Court's jurisdiction to read, but we will do whatever the Court tells us to do. MR. ALESHIRE: And we've issued them We will serve

subpoenaes, with notice of subpoenaes. them with the actual subpoena. THE COURT: Okay.

So I think Counsel has

stated on the record the limited scope of the examination, has also agreed that the nonformer employees can assert a privacy issue, and that that issue will be certified, and the Court will then make a determination whether some of those documents that are -- that they are withholding are, in fact, private

Plea to the Jurisdiction September 30, 2013

61

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

or not. MR. DENTON: accommodated in my request. THE COURT: Okay. Other than, I think, That's correct. Those are

limiting it to Joyce Wilson, I think the Court is going to allow the depositions to go forward on current nonemployees -- of the limited -- but limited to the scope as set out in the subpoena duces tecum, the subpoena related to that time frame when they were employees, the time related to e-mails -- I mean, the scope related to e-mails that are, in fact, conducting official business even in their personal accounts. But if they assert a privacy privilege, then that will be raised at the time of the deposition. MR. ALESHIRE: Regarding the recordkeeping

issue, Your Honor -- and I didn't have a chance to ask this -- we should probably have -- in the recorded -- in the record the exhibits, their exhibit with their plea to the jurisdiction of Ms. Wilson's affidavit, and our exhibits attached to our response. THE COURT: Do you want to go ahead and -And I would -- I would --

MR. ALESHIRE: with no objection? MR. DENTON:

They are attached to They

documents that the Court takes judicial notice of.

Plea to the Jurisdiction September 30, 2013

62

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

are in the record. MR. ALESHIRE: Just as long as they are

accepted as the evidence as the affidavits. THE COURT: All right. The Court will

take judicial notice of the Court's file, including the affidavit of Ms. Wilson and then the other exhibits that were submitted by the Intervenor, including the -- I think Exhibit -- Intervenor's 6. MR. ALESHIRE: through 17 that is attached. THE COURT: Okay. 1 through 17. It is actually, it's 1

Anything else? MR. DENTON: THE COURT: excused. MR. DENTON: an order and present it? MR. ALESHIRE: complicated than that. If it's not more And Mr. Aleshire will prepare Nothing further, Judge. All right. Then you are

But if we need to put something

else in, we will work on that. And with the stipulation I made on the record. THE COURT: I since I -- you know, I made,

on the record, that I was neither denying or granting the plea to the jurisdiction.

Plea to the Jurisdiction September 30, 2013

63

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. DENTON: MR. ALESHIRE: THE COURT: MR. DENTON: THE COURT: MR. DENTON: THE COURT: MR. DENTON:

Yes.

I understand that part.

But we would need --

Do you want a motion to quash? May I -It's just a denial. Okay. May I see the order?

It's just a denial. I would merely propose that

the Court modify that to say, denies the motion except to the extent of the limitations granted on the record, or something like that and sign it. THE COURT: MR. DENTON: Okay. Because I am perfectly That's fine.

comfortable with what the record reflects are our responsibilities as officers of the Court, Judge. MR. ALESHIRE: And we will work on a

reasonable date and time in December. MS. FUCHS: THE COURT: Thank you. Okay. So basically what I did

was -- I'm adding, "Denies the motion except to the extent that the parties agreed to limitations," because there was some agreements, and those ordered by the Court and read into the record. MR. DENTON: THE COURT: Thank you, Your Honor. All right. So let me give you

Plea to the Jurisdiction September 30, 2013

64

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

this.

September 30th, all day.

Can you believe October

1 is manana? Here is the order and here is your stuff. MR. TSCHIRHART: For clarification

purposes, we have agreed not to do depositions later this week. MR. ALESHIRE: THE COURT: MR. DENTON: patience and consideration. THE COURT: Sure, Counsel. That's correct.

Yes. I thank the Court for its

(End of Proceedings.)

Plea to the Jurisdiction September 30, 2013

65

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

STATE OF TEXAS COUNTY OF TRAVIS I, Dora M. Canizales, Official Court Reporter in and for the 419th District Court of Travis, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me. I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties. I further certify that the total cost for the preparation of this Reporter's Record is $ was paid/will be paid by WITNESS MY HAND on this the 4th day of October, 2013. /S/Dora M. Canizales Dora M. Canizales, CSR #5360 Official Court Reporter 419th District Court Travis County, Texas 1000 Guadalupe St., Room 325 Austin, Texas 77002 Telephone: 512-854-9329 Expiration: 12/31/2013 and .